UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ZEYAD T. ALKARAWI, Case No. 1:20-cv-00180-DCN Plaintiff, INITIAL REVIEW ORDER BY v. SCREENING JUDGE

GARY HARTGROVE,

Defendant.

The Clerk of Court conditionally filed Plaintiff Zeyad T. Alkarawi’s Complaint as a result of Plaintiff’s status as an inmate and in forma pauperis request. The Court now reviews the Complaint to determine whether it should be summarily dismissed in whole or in part under

and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order directing Plaintiff to file an amended complaint if Plaintiff intends to proceed. 1. Screening Requirement The Court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity, as well as complaints filed in forma pauperis, to determine whether summary dismissal is appropriate. The Court must dismiss a complaint or any portion thereof that states a frivolous or malicious claim, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.

(e)(2)(B) & 1915A(b). 2. Pleading Standard A complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint fails to state a claim for relief under Rule 8 if the factual assertions in the complaint, taken as true, are insufficient for the reviewing court plausibly “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

(2009). “[D]etailed factual allegations” are not required, but a plaintiff must offer “more than ... unadorned,

the-defendant-unlawfully-harmed-me accusation[s].”

(internal quotation marks omitted). If the facts pleaded are “merely consistent with a defendant’s liability,” or if there is an “obvious alternative explanation” that would not result in liability, the complaint has not stated a claim for relief that is plausible on its face.

(internal quotation marks omitted).

3. Factual Allegations Plaintiff is a prisoner in the custody of the Idaho Department of Correction, currently incarcerated at the Idaho Maximum Security Institution. From the face of the Complaint itself, it is not entirely clear what Plaintiff is alleging. However, the Court gleans the following allegations from the Complaint as augmented by the attachments that Plaintiff has included with that Complaint.

In January 2020, after a fight between Plaintiff and another inmate, it appears Plaintiff was issued a Disciplinary Offense Report (“DOR”) for his role in that fight. Lieutenant Peneku, who is not named as a defendant in this action, reported on the DOR form that Plaintiff had “sent a concern form to the unit sgt notifying the sgt of the fight.” Compl., Dkt. 1, at 2. The DOR—including the notation that Plaintiff had told a correctional officer about the fight—was given to another inmate.

It appears that that inmate then told other inmates that Plaintiff had informed the sergeant about the fight. As a result, an inmate confronted Plaintiff and, after learning who Plaintiff was, attacked him—presumably because Plaintiff had snitched to the unit sergeant.

Plaintiff’s hand, which was previously injured in the initial fight, was further damaged by this second incident.

Plaintiff filed a grievance regarding this second incident, complaining that Peneku had placed Plaintiff’s life at risk by allowing information about Plaintiff’s concern form to be disseminated to other inmates. Att. to Compl., Dkt. 1-1. Defendant Hartgrove investigated the allegations and “confirmed” that Peneku had, indeed, included that information on the DOR and gave that DOR form to another inmate. As a result, Plaintiff

was granted a protective custody hearing and was placed in protective custody.

at 2–4. Defendant Hartgrove responded to Plaintiff’s grievance. Hartgrove stated, “Th[e] portion of your grievance requesting we provide you with safe housing is granted. The portions of the grievance concerning your health care needs is outside of my authority to address.” Id. at 3. An appellate authority later encouraged Plaintiff to address his health

care concerns by submitting “medical request forms” to the prison’s medical provider. Id. at 4. Plaintiff claims that Defendant Hartgrove has violated the Eighth Amendment, presumably by (1) failing to take action beyond ensuring that Plaintiff received a protective custody hearing and (2) failing to take action on Plaintiff’s health care request. 4. Discussion Plaintiff has not alleged sufficient facts to proceed with the Complaint. The Court

will, however, grant Plaintiff 60 days to amend the Complaint. Any amended complaint should take into consideration the following. A. Section 1983 Claims Plaintiff brings claims under

, the civil rights statute. To state a plausible civil rights claim, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting

under color of state law. Crumpton v. Gates,

(9th Cir. 1991). To be liable under § 1983, “the defendant must possess a purposeful, a knowing, or possibly a reckless state of mind.” Kingsley v. Hendrickson,

(2015). Negligence is not actionable under § 1983, because a negligent act by a public official is not an abuse of governmental power but merely a “failure to measure up to the conduct of a reasonable

person.” Daniels v. Williams,

(1986). Prison officials and prison medical providers generally are not liable for damages in their individual capacities under § 1983 unless they personally participated in the alleged constitutional violations. Taylor v. List,

(9th Cir. 1989); see also Iqbal,

(“[E]ach Government official, his or her title notwithstanding, is only liable

for his or her own misconduct.”). Section 1983 does not allow for recovery against an employer or principal simply because an employee or agent committed misconduct. Taylor,

. However, “[a] defendant may be held liable as a supervisor under § 1983 ‘if there exists ... a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.’” Starr v. Baca,

(9th Cir. 2011) (quoting

Hansen v. Black,

(9th Cir. 1989)). A plaintiff can establish this causal connection by alleging that a defendant (1) “set[] in motion a series of acts by others”; (2) “knowingly refus[ed] to terminate a series of acts by others, which [the supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury”; (3) failed to act or improperly acted in the training, supervision, or control of his subordinates”;

(4) “acquiesc[ed] in the constitutional deprivation”; or (5) engag[ed] in “conduct that showed a reckless or callous indifference to the rights of others.”

at 1205–09. A plaintiff may also seek injunctive relief from officials who have direct responsibility in the area in which the plaintiff seeks relief. See Rounds v. Or. State Bd. of Higher Educ.,

, 1036 (9th Cir. 1999).

A claim that a supervisor or training official failed to adequately train subordinates ordinarily requires that, “in light of the duties assigned to specific officers or employees[,] the need for more or different training [was] so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the [supervisor or training official] can reasonably be said to have been deliberately indifferent to the need.” City of Canton v.

Harris,

(1989). That is, to maintain a failure-to-train claim, a plaintiff must allege facts showing a “pattern of violations” that amounts to deliberate indifference. Connick v. Thompson,

(2011). Likewise, “a failure to supervise that is sufficiently inadequate may amount to deliberate indifference” that supports a § 1983 claim, but there generally must be a pattern of violations sufficient to render the need for further supervision obvious. Dougherty v. City of Covina,

(9th Cir. 2011) (internal quotation marks omitted). That

is, if a supervisory or training official had “knowledge of the unconstitutional conditions” through such a pattern of violations—including knowledge of the “culpable actions of his subordinates”—yet failed to act to remedy those conditions, that official can be said to have acquiesced “in the unconstitutional conduct of his subordinates” such that a causal connection between the supervisor and the constitutional violation is plausible. Starr,

. The Eighth Amendment protects prisoners against cruel and unusual punishment. Although prison conditions may be restrictive—even harsh—without violating the Eighth Amendment, prison officials are required to provide prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety. Rhodes v. Chapman,

(1981); Hoptowit v. Ray,

(9th Cir. 1982), abrogated on other grounds by Sandin v. Conner,

(1995). To state a claim under the Eighth Amendment, prisoners must show that they are “incarcerated under conditions posing a substantial risk of serious harm,” or that they have been deprived of “the minimal civilized measure of life’s necessities” as a result of the

defendants’ actions. Farmer v. Brennan,

(1994) (internal quotation marks omitted). An Eighth Amendment claim requires the plaintiff to satisfy both (1) an objective standard, “that the deprivation was serious enough to constitute cruel and unusual punishment,” and (2) a subjective standard, that the defendant acted with “deliberate indifference.” Snow v. McDaniel,

(9th Cir. 2012), overruled in part on other grounds by Peralta v. Dillard,

(9th Cir. 2014) (en banc). As for the objective prong of the analysis, “[n]ot every governmental action

affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny.” Whitley v. Albers,

(1986). Rather, the deprivation alleged must be objectively sufficiently harmful or, in other words, sufficiently “grave” or “serious.” Wilson v. Seiter,

(1991). With respect to the subjective prong of an Eighth Amendment violation, “deliberate

indifference entails something more than mere negligence, [but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Farmer,

. “To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety.” Whitley,

.

To exhibit deliberate indifference, a defendant “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer,

. If a [prison official] should have been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, no matter how severe the risk.” Gibson v. Cty. of Washoe,

(9th Cir. 2002), overruled on other grounds by Castro v. Cty. of Los Angeles,

(9th Cir. 2016). The Eighth Amendment includes the right to adequate medical and mental health treatment, and prison officials or prison medical providers can be held liable if their “acts or omissions [were] sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble,

(1976). Regarding the objective standard for prisoners’ medical care claims, “society does not expect that prisoners will

have unqualified access to health care.” Hudson v. McMillian,

(1992). Therefore, “deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are ‘serious.’”

The Ninth Circuit has defined a “serious medical need” in the following ways: failure to treat a prisoner’s condition [that] could result in further significant injury or the unnecessary and wanton infliction of pain[;] ... [t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain ....

McGuckin v. Smith,

(9th Cir. 1992) (internal citations omitted), overruled on other grounds, WMX Techs., Inc. v. Miller,

(9th Cir. 1997) (en banc). In the medical context, deliberate indifference can be “manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle,

(footnotes omitted). Medical malpractice or negligence does not support a cause of action under the Eighth Amendment, Broughton v. Cutter Labs.,

(9th Cir. 1980) (per curiam), and a delay in medical treatment does not violate the Eighth Amendment unless that delay causes further harm, McGuckin,

. Additionally, there is no constitutional right to an outside medical provider of one’s own choice. See Roberts v. Spalding,

(9th Cir. 1986) (“A prison inmate has no independent constitutional right to outside medical care additional and supplemental to the medical care provided by the prison staff within the

institution.”). Differences in judgment as to appropriate medical diagnosis and treatment between an inmate and prison medical providers—or, for that matter, between medical providers— are not enough to establish a deliberate indifference claim. Sanchez v. Vild,

(9th Cir. 1989). “[T]o prevail on a claim involving choices between alternative courses

of treatment, a prisoner must show that the chosen course of treatment ‘was medically unacceptable under the circumstances,’ and was chosen ‘in conscious disregard of an excessive risk’ to the prisoner’s health.” Toguchi v. Chung,

(9th Cir. 2004) (alteration omitted) (quoting Jackson v. McIntosh,

(9th Cir. 1996)). Stated another way, a plaintiff must plausibly allege that medical providers chose one

treatment over the plaintiff’s preferred treatment “even though they knew [the plaintiff’s preferred treatment] to be medically necessary based on [the plaintiff’s] records and prevailing medical standards.” Norsworthy v. Beard,

(N.D. Cal. 2015). Non-medical prison personnel generally are entitled to rely on the opinions of

medical professionals with respect to the medical treatment of an inmate. However, if “a reasonable person would likely determine [the medical treatment] to be inferior,” the fact that an official is not medically trained will not shield that official from liability for deliberate indifference. Snow,

(internal quotation marks omitted); see also McGee v. Adams,

(7th Cir. 2013) (stating that non-medical personnel may rely on medical opinions of health care professionals unless “they have a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not

treating) a prisoner”) (internal quotation marks omitted). Defendants who were involved in reviewing claims in the administrative grievance process may or may not have liability for the constitutional violations complained of regarding actual grievances they processed, depending on (1) the type and timing of the problem complained of and (2) the role of the defendant in the process. For example, an

appeals coordinator cannot cause or contribute to a completed constitutional violation that occurred in the past and that is not remediable by any action the reviewer might take. See, e.g., George v. Smith,

(7th Cir. 2007) (“A guard who stands and watches while another guard beats a prisoner violates the Constitution; a guard who rejects an administrative complaint about a completed act of misconduct does not.”).

It may be, however, that an alleged constitutional violation is ongoing, and the defendants reviewing the prisoner’s grievances may have the duty and authority to review the propriety of the action of which the prisoner complains and to remedy the alleged deficiencies. In such a case, the reviewing defendants may be subject to § 1983 liability because they knew of an “ongoing constitutional violation,” and would have had “the

authority and opportunity to prevent the ongoing violation,” but did not intervene to remedy the situation. See Herrera v. Hall,

, at *4 (E.D. Cal. July 14, 2010) (unpublished) (citing Taylor,

). A plaintiff cannot simply restate these standards of law in a complaint. Instead, a plaintiff must provide specific facts supporting the elements of each claim and must allege facts showing a causal link between each defendant and Plaintiff’s injury or damage. Alleging “the mere possibility of misconduct” is not enough. Iqbal,

.

Plaintiff’s Complaint fails to state a plausible Eighth Amendment claim against the only named Defendant. Defendant Hartgrove was not involved in the underlying act that placed Plaintiff in danger—Lieutenant Peneku’s decisions (1) to document the fact that Plaintiff had notified an officer of an inmate fight and then (2) to provide that documentation to another inmate. Rather, Hartgrove merely reviewed Plaintiff’s grievance

on the issue after-the-fact. Having merely responded to Plaintiff’s grievance, Hartgrove could not have contributed to the underlying violation that allegedly caused the other inmate to attack Plaintiff. As for Hartgrove’s failure to follow-up with Plaintiff’s request for medical treatment, this failure did not violate the Eighth Amendment. Hartgrove, as a correctional

officer—not a medical provider—had no authority to provide Plaintiff with medical treatment. Instead, Plaintiff needed to seek treatment from the medical provider at the prison, which the appellate authority clearly told Plaintiff in the final response to Plaintiff’s grievance. Plaintiff should keep the above standards in mind if he filed an amended complaint.

B. State Law Claims In addition to § 1983 claims, Plaintiff purports to assert state law claims. Compl. at 1. Because the Complaint fails to state a federal claim upon which relief may be granted, the Court declines to exercise supplemental jurisdiction over Plaintiff’s state law claims. See

(c). If Plaintiff is allowed to proceed on a federal claim in an amended complaint, and if the amended complaint states a plausible state law claim, the Court will reconsider the issue of supplemental jurisdiction.

5. Standards for Amended Complaint If Plaintiff chooses to amend the Complaint, Plaintiff must demonstrate how the actions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See Ellis v. Cassidy,

(9th Cir. 1980), abrogated on other grounds by Kay v. Ehler,

(1991). Plaintiff must also allege a sufficient causal connection

between each defendant’s actions and the claimed deprivation. Taylor,

; Johnson v. Duffy,

(9th Cir. 1978). “Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss” or to survive screening under

and 1915A. Ivey v. Bd. of Regents of Univ. of Alaska,

(9th Cir. 1982); see also Iqbal,

(“Nor

does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” (internal quotation marks and alteration omitted)). Rather, for each cause of action against each defendant, Plaintiff must state the following: (1) the name of the person or entity that caused the alleged deprivation of Plaintiff’s constitutional rights; (2) facts showing the defendant is a state actor (such as

state employment or a state contract) or a private entity performing a state function; (3) the dates on which the conduct of the defendant allegedly took place; (4) the specific conduct or action Plaintiff alleges is unconstitutional; (5) the particular federal constitutional provision (or state law provision) Plaintiff alleges has been violated; (6) facts alleging that the elements of the violation are met; (7) the injury or damages Plaintiff personally suffered; and (8) the particular type of relief Plaintiff is seeking from each defendant. Further, any amended complaint must contain all of Plaintiff’s allegations in a single

pleading and cannot rely upon, attach, or incorporate by reference other pleadings or documents. Dist. Idaho Loc. Civ. R. 15.1 (“Any amendment to a pleading, whether filed as a matter of course or upon a motion to amend, must reproduce the entire pleading as amended. The proposed amended pleading must be submitted at the time of filing a motion to amend.”); see also Forsyth v. Humana, Inc.,

(9th Cir. 1997) (“[An]

amended complaint supersedes the original, the latter being treated thereafter as non- existent.”), overruled in part on other grounds by Lacey v. Maricopa County,

, (9th Cir. 2012) (en banc); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc.,

(9th Cir. 1990) (holding that the district court erred by entering judgment against a party named in the initial complaint, but not in the amended complaint).

Plaintiff must set forth each different factual allegation in a separate numbered paragraph. The amended complaint must be legibly written or typed in its entirety, and it should be clearly designated as the “First Amended Complaint.” Plaintiff’s name and address should be clearly printed at the top left corner of the first page of each document filed with the Court.

If Plaintiff files an amended complaint, Plaintiff must also file a “Motion to Review the Amended Complaint.” If Plaintiff does not amend within 60 days, or if the amendment does not comply with Rule 8, this case may be dismissed without further notice. See Knapp v. Hogan,

(9th Cir. 2013) (“When a litigant knowingly and repeatedly refuses to conform his pleadings to the requirements of the Federal Rules, it is reasonable to conclude that the litigant simply cannot state a claim.”). ORDER IT IS ORDERED: 1. Plaintiff has 60 days within which to file an amended complaint as described above. If Plaintiff does so, Plaintiff must file (along with the amended complaint) a Motion to Review the Amended Complaint. If Plaintiff does not amend within 60 days, this case may be dismissed without further notice. 2. Plaintiff's request for appointment of counsel (contained in the Complaint) is DENIED without prejudice. Plaintiff may renew the request for counsel in an amended complaint.

<a DATED: June 3, 2020

mail - oe Least Chic US District Court Judge

INITIAL REVIEW ORDER BY SCREENING JUDGE - 14